Wentworth Park Sporting Complex Trust v Leichhardt Council

[2002] NSWLEC 152

Reported Decision: 122 LGERA 271

Land and Environment Court

of New South Wales

CITATION:	Wentworth Park Sporting Complex Trust v Leichhardt Council [2002] NSWLEC 152
PARTIES:	APPLICANT: Wentworth Park Sporting Complex Trust RESPONDENT: Leichhardt Council
FILE NUMBER(S):	30077 of 2001
CORAM:	Bignold J
KEY ISSUES:	Rating :- Exemption in respect of land owned by the Crown not leased for private purposes-Wentworth Park (Greyhoud Racing Complex)
LEGISLATION CITED:	Local Government Act 1993, s 555 Crown Lands Act 1989
CASES CITED:	Forster Homes For the Aged Trust v Great Lakes Shire Council (1976) 1 NSWLR 577 ; Gladstone Town Council v Gladstone Harbour Board (1964) 11 LGRA 231.; Quality Parks Pty Ltd v Maclean Shire Council (2002) NSWLEC 77; Randwick Council v Rutledge (1959) 102 CLR 54; Townville Hospital Board v Townsville City Council (1982) 149 CLR 282; Trustees of Wentworth Park v Sydney City Council (1962) 8 LGRA 238; Trustees of Wentworth Park v Glebe Municipal Council and Anor (1949) 17LGR 146
DATES OF HEARING:	6 March 2002 31 May 2002
DATE OF JUDGMENT:	09/02/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr S Kerr, Barrister SOLICITORS Manion McCosker RESPONDENT: Mr T Robertson SC SOLICITORS Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND

Matter No. 30077 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

2 September 2002

WENTWORTH PARK SPORTING COMPLEX TRUST

Applicant

v

LEICHHARDT COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Local Government Act 1993, s 574 (the LG Act) in respect of two rates and charges notices served on the Applicant on 31 July 2001 in respect of separate parts of land known as lot 678 Deposited Plan 729635 (the subject land) in respect of the rate year from 1 July 2001 to 30 June 2002.

2. One of the notices described the relevant part of the subject land as “substation premises No 560” and the other notice described the relevant part as the Wentworth Park Greyhound Track.

3. At the time that the rates and charges notices were served, the Applicant was the trustee (“reserve trust”) appointed under the Crown Lands Act 1989 (or deemed to be so appointed) of the “reserve” known as Wentworth Park (Greyhound Racing Complex). Since that time, the Minister, pursuant to s 117 of the Crown Lands Act appointed Mr Peter William McCann as the administrator of the reserve trust but that fact does not affect the issues to be determined in the present proceedings.

4. The subject land, which comprises an area of 3.986 hectares forms part of what has been continuously known since at least 1885,as “Wentworth Park”, being an area of reclaimed land currently bounded by Bridge Road, Wattle Street, William Henry Street and Wentworth Park Road, Glebe. Deposited Plan 729635 was registered on 22 May 1991 and comprises four lots, namely lots 677, 678 (the subject land) 679 and 680 comprising areas of 5.766 ha, 3.986 ha, 2.696 ha and 1,910 m2 respectively. The combined area of these four lots is approximate to the area of “about 32 acres known as Wentworth Park, the greater part of which was declared by Act 41 Victoria 20 to be set apart and dedicated in perpetuity as a park or place of public recreation” that is referred to in the judgment of Sugerman J sitting as the Land and Valuation Court in 1949 in Trustees of Wentworth Park v Glebe Municipal Council and Anor (1949) 17LGR 146. In that case, Sugerman J was considering the rateability under the Local Government Act 1919 of “an enclosed portion of about 11 acres” of the area comprising “Wentworth Park” which is a little larger than, but includes the totality of, the subject land.

5. His Honour held that that portion of Wentworth Park was exempt from rates because it came within the exemption then provided by the Local Government Act 1919, s 132(1)(c) (“land which is vested in…..trustees and is used for a public reserve”) That case had involved the rating years 1947 and 1949 and thereafter no further rate assessments were made in respect of that portion of Wentworth Park until the 1960 rate year when an assessment was issued on the trustees and on the licencee of the trustees (NSW National Coursing Association) following the decision of the High Court of Australia in Randwick Municipal Council v Rutledge (1959) 102 CLR 54. This 1960 assessment was appealed on the ground that the land came within the exemption provided by s 132(1)(c) and was the subject of a further decision of the Land and Valuation Court (Hardie J) in 1962 in Trustees of Wentworh Park v Sydney City Council (1962) 8 LGRA 238 where his Honour dismissed the appeals, holding that the earlier decision of Sugerman J relative to Wentworth Park should no longer be treated as decisive, or persuasive following the High Court’s decision in Rutledge.

6. Hardie J’s decision was upheld by the Full Court in Trustees of Wentworth Park v Sydney City Council (1964) 64 SR 423 on a case stated by Hardie J.

7. It appears from correspondence passing between the parties that thereafter rate assessments were served on the trustee and were duty paid. However, early in 2000, the Applicant raised with the Council the question of the basis of the rateability of the subject land. In its letter to the Applicant dated 28 April 2000, the Council stated inter alia:

In response to your question Council has levied the rates in accordance with Section 554 of the Local Government Act 1993, which provides that all land in an area is rateable unless it is exempted under Section 555 of the Act.

Section 555(1)(a) of the Act provides that land owned by the Crown, not being land held under a lease for private purposes, is exempt from all rates.

While Council acknowledges, the land at Wentworth Park (Lot 678 in Deposited Plan 729635), is Crown land vested in the Wentworth Park Sporting Complex Trust, council has determined the land as being held for private purposes and is of the view that the Trust is unable to claim an exemption from rating under Section 555(1)(a) of the Act.

8. In view of this advice it was somewhat surprising that the Council’s initial response to the present proceedings (reflected in its Statement of Issues filed on 1 February 2002) was that the appeal raised the following issues:

1. Whether the Trust constitutes the owner of the subject land as defined in the Local Government Act 1993.

2. Whether the Trust holds the fee simple of the subject land under the provisions of the Crown Lands Act.

3. Whether the Trust has exclusive possession of the land under the provisions of the Crown Lands Act while it remains appointed the Trustee of the subject land.

9. This position was maintained up to the hearing which was initially confined to the question whether the subject land was “owned by the Crown” within the meaning of the Local Government Act 1993, s 555(1)(a) which provides:

The following land is exempt from all rates:

(a) land owned by the Crown, not being held under a lease for private purposes

10. However, in the course of the hearing, the Council withdrew its earlier concession necessitating an adjournment of the hearing in order for the parties to prepare their respective cases on the question whether the subject land was relevantly “land not held under a lease for private purposes” within the meaning of the statutory exemption.

11. Upon the completion of the adjourned hearing, the Court is required to adjudicate upon the two issues arising from s 555(1)(a) that were both ultimately in dispute—namely

(i) whether the subject land is relevantly “ land owned by the Crown ”; and

(ii) if so, whether the subject land is “not held under a lease for private purposes”.

12. In respect of both these issues, the Applicant claiming or asserting the relevant statutory exemption, bears the burden of proof since—

(i) the exemption from rates asserted by the Applicant is by way of an exception to s 554 which provides “ All land in an area is rateable unless it is exempt from rating” ; and

(ii) the appeal right conferred by s 574 of the Local Government Act 1993 that was exercised by the Applicant in bringing these proceedings is vested in “a person who has an estate or interest in land or is the holder of a licence or permit for land under the Crown Lands Act 1989 in respect of which a rates and charges notice is served” and allows an appeal on the ground that “the land or part of it is not rateable….”.

B. THE RELEVANT STATUTORY PROVISIONS

13. There are two separate relevant statutory regimes that must be considered in this case, namely—
(i) the Local Government Act 1993 in relation to the rateability of the subject land and
(ii) the Crown Lands Act 1989 (and its legislative antecedents) in relation to the status and ownership of the subject land as part of Wentworth Park (including the Applicant’s interest therein).

The Local Government Act 1993.

Section 554 provides “ All land in an area is rateable unless it is exempt from rating” .

Section 555(1) provides: “The following land is exempt from all rates:

(a) land owned by the Crown, not being land held under a lease, for private purposes. ”
Section 560 provides:
(1) The owner for the time being of land on which a rate is levied is liable to pay the rate to the council, except as provided by this section.

(2) If land owned by the Crown is leased, the lessee is liable to pay the rate, except as provided by subsection (4).

(3) If there are two or more owners, or two or more lessees from the Crown, of the land, they are jointly and severally liable to pay the rate.

(4) The Crown is liable to pay the rate for land owned by the Crown which is subject to the Housing Act 1912 or the Aboriginal Housing Act 1998.

Section 3 provides:
Expressions used in this Act (or in a particular provision of this Act) which are defined in the dictionary at the end of this Act have the meanings set out in the dictionary.
The dictionary to the Act contains the following relevant definitions—
owner :

(a) in relation to Crown land, means the Crown and includes:


(i) a lessee of land from the Crown, and

(ii) a person to whom the Crown has lawfully contracted to sell the land but in respect of which the purchase price or other consideration for the sale has not been received by the Crown, and


(b) in relation to land other than Crown land, includes:

(i) every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession, and

(ii) every such person who is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession, or otherwise, and


Crown includes any statutory body representing the Crown.

Crown land has the same meaning as in the Crown Lands Act 1989.

Note.

Crown land, as defined in the Crown Lands Act 1989, means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being:

(a) land dedicated for a public purpose, or

(b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.

lease:

(a) includes an original lease, derivative lease or an under-lease or an agreement for any of them, and extends to any case where there is the relation of landlord and tenant, whether there is or is not any instrument in writing, and

(b) in relationship to Crown land, land owned by or vested in the Crown or land within a State forest, includes a licence, permit, permissive occupancy or authority

The Crown Lands Act 1989 and its legislative antecedents

14. As the subject land has continuously formed part of Wentworth Park since at least 1885, it is obvious that there is a considerable source of relevant legislative antecedents to the currently applicable Crown Lands Act 1989 to which reference must be made.

15. However, I shall first recite the relevant provisions of the currently applicable Crown Lands Act 1989 which governs the Applicant’s interest and title to the subject land, before tracing the relevant legislative history governing the continuing status of the subject land as forming a part of Wentworth Park, a park or place of public recreation that was dedicated in perpetuity by Act 40 Victoria 21.

16. Part 5 of the Act is headed “Dedication and reservation of land” includes s 78 which contains the following definitions:

reserve means land which is dedicated or reserved under this Act or which immediately before the commencement of this section was a reserve within the meaning of Part 3B of the Crown Lands Consolidation Act 1913 , not in either case being:

(a) a common within the meaning of the Commons Regulation Act 1898,

(b) land within the meaning of the Trustees of Schools of Arts Enabling Act 1902, or

(c) land, or land of a class, in respect of which an order under section 79 is in force.

reserve trust means a corporation constituted under Division 4 and appointed as trustee of a reserve or part of a reserve.

trust board means a trust board appointed under section 93.

Division 2 of Part 5 contains provisions relating to “ dedications ” including the power of the Minister to dedicate Crown land for a public purpose ( s 80 ) and “ to revoke a dedication made before or after the commencement of this section ” ( s 84 ).

Division 3 of Part 5 contains provisions relating to “reservations” including the power of the Minister to reserve “Crown land” (s 87) and to revoke a reservation (s 90).

It is to be noted that the power vested in the Minister is to dedicate or to reserve Crown land which is defined by s 3 as follows:

Crown land means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being:

(a) land dedicated for a public purpose, or

(b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.

Division 4 of Part 5 contains provisions relating to “ reserve trusts ” including the power of the Minister to “ establish and name a reserve trust and appoint it as trustee of any one or more specified reserves ” ( s 92 ) to appoint a “ trust board ” ( s 93 ) and to appoint a corporation to manage the affairs of the reserve trust ( s 95 ).

A reserve trust established under s 92(1) is constituted a corporation (subsection 2) having the functions conferred upon it by or under this Act (subsection (4)) and in particular is charged with the “care control and management of any reserve…of which it is appointed trustee (subsection (5)) and having its affairs managed by a trust board or corporation or administrator” (subsection (6)).

Division 5 of Part 5 which is headed “Trust Property” includes the following provisions:

99. Operation of Division

(1) This Division does not affect the provisions of any other Act relating to a particular reserve or reserve trust.

(2) The functions of a reserve trust or the Minister under this Division are not affected by anything contained in any Crown grant issued for the reserve.

100. Estate of trust

(1) For the purposes only of this Part and a by-law under this Part, a reserve trust that, but for this section, would not have an estate in fee simple in the reserve has such an estate.

(2) The reserve trust is not capable of alienating, charging, granting leases of or licences or easements in respect of, or in any way disposing of the whole or any part of the reserve, except in accordance with this Part.

(3) Revocation of the dedication or reservation of the whole or part of a reserve divests the reserve trust of any estate in the land affected by the revocation.

Other functions conferred upon a reserve trust by Division 5 of Part 5 include the following—


(i) to purchase, with the approval of the Minister, other property ( s 101 );

(ii) to sell, lease, grant an easement or a licence or to mortgage, a reserve in accordance with the terms of the Minister’s consent (s 103).

Section 106 requires the net amount received as proceeds from the sale lease, easement or licence by a reserve trust to “ be applied in accordance with the directions (if any) given by the Minister ” ( subsection (1) ) and in the absence of such a direction the proceeds “ shall be applied for the general purposes of the reserve trust and may be invested or applied by the trust accordingly ” ( subsection (3) ).

Section 111(1) provides that upon the dissolution of a reserve trust “any real or personal property vested in the trust (except reserve land”) may be disposed of by the Minister in such manner as the Minister considers appropriate.

Section 111A(1) provides that if a new trust is established in respect of a reserve of which a dissolved trust was trustee, the provisions of s 125(3) apply to the new reserve trust “with such modifications as may be necessary or as the Minister may direct” (Subsection (4)).

Section 125(3) includes the following provisions—

(a) all the property of the former trustee becomes the property of the new trustee, including land purchased by the former trustee,

(j) an attornment to the new trustee by a lessee from the former trustee is not required

Section 122 requires a reserve trust to furnish reports to the Minister concerning prescribed matters ( subsection (1) (but the Minister may grant an exemption from these requirements ( subsection (2) ) and requires a reserve trust at the request of the Minister to give the Minister information concerning the operations of the trust, including records (including accounting records) ( subsection (3) ).

Section 123 empowers the Minister to appoint a person to carry out an audit of the affairs of a reserve trust.

17. Section 186 enacts the savings and transitional provisions contained in Schedule 8 consequent upon the repeal by s 185 of all earlier Crown Lands and Closer Settlement Acts.

18. Clause 1 of Schedule 8 contains the following provisions in respect of existing dedications and reservations—

1 Existing dedications and reservations

(1) A dedication or reservation in force or taken to be in force under a repealed Act immediately before its repeal has effect as if it had been made under this Act.

(2) The dedication or reservation:


(a) is for the same purpose and on the same terms as the original dedication or reservation, and

(b) dates from the date of the original dedication or reservation.


(3) This clause applies whether or not the original reservation was temporary.

19. Clause 4 of Schedule 8 contains the following provisions for the replacement of existing trustees of a reserve by a reserve trust:

4 Replacement of trustees by reserve trusts

(1) On the commencement of Part 5, a reserve trust shall be taken to have been constituted under that Part as trustee of a reserve for which a trustee or trustees ("the former trustee or former trustees") held office immediately before that commencement.

(2) If the former trustees were constituted as a corporation under a repealed Act, the corporate name of the reserve trust shall be the same as the corporate name of the corporation so constituted.

(3) In any other case the corporate name of the reserve trust shall be the name which the Minister assigns or, if the Minister does not assign a name, the name which the reserve trust determines.

(4) The corporate name of a reserve trust may be changed in accordance with Part 5.

(5) On and from the commencement of Part 5, a reference in any other Act or in any instrument made under an Act to trustees of land shall, if the land is or is to be taken to be a reserve under Part 5 of which a reserve trust is trustee, be construed as a reference to that reserve trust.

20. Clause 5 of Schedule 8 contains provisions with respect to existing trustees becoming members of a trust board.

21. Clause 6 of Schedule 8 applies the provisions of s 125(3) to a reserve trust which is constituted under the Schedule.

22. The provisions of the Crown Lands Act 1989, Part 5 substantially re-enact the provisions of the Crown Lands Consolidation Act 1913, Part 111B as inserted by the Crown Lands and Other Acts (Reserves) Amendment Act 1974.

23. Of particular relevance is the definition of “reserve” contained in s 37M because the definition of “reserve” contained in the Crown Lands Act 1989 includes a “reserve” within the meaning of Part 3B of the earlier Act. That definition is as follows:

reserve means—

(a) lands dedicated or reserved under the Crown Lands Acts or the Closer Settlement Acts for any public purpose; or

(b) any other lands in respect of which a trustee appointed or purporting to have been appointed under the Public Trusts Act, 1897, or the Public Parks Act, 1912, was holding or purporting to hold office immediately before the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974,


and includes lands within a state recreation area, but does not include—

(c) any common within the meaning of the Commons Regulation Act, 1898;

(a) any lands within the meaning of the Trustees of Schools of Arts Enabling Act, 1902; or
(b) any lands or class of lands in respect of which an order under section 37N is in force.

24. In the present case, the relevant aspect of the definition is “land in respect of which a trustee appointed under….the Public Parks Act 1912, was holding office immediately before the commencement of (the 1974 Act)”.

25. Section 5 of the 1974 Act repealed a number of existing Acts, including the Public Parks Act 1912.

26. Part III of the 1974 Act contained savings provisions where included, s 15 which deemed trustees holding office under any of the repealed enactments to be appointed to the same office under the 1974 Act.

27. The Public Parks Act 1912 repealed a number of existing Acts, including the Public Parks Act 1902. Section 2 of the 1912 Act contained a savings provision in respect of all existing trustees appointed under any repealed enactment.

28. Section 4 empowered the Governor to appoint trustees

of any lands which—

(a) have been or are hereafter dedicated by proclamation or notification in the Gazette……

29. Section 8 provided as follows:

8. Trustees shall, for all purposes of this Act, and of any by-law thereunder, be deemed to hold an estate in fee-simple in the land for which they were appointed, but shall not be capable of alienating, charging, or in any way disposing of such land, or any part thereof:

Provided that trustees may, with the consent of the Minister, lease or grant grazing or other temporary licenses to occupy or use any portion of such land for such purposes, on such terms and subject to such conditions as the Minister approves.

30. The Public Parks Act 1902 had repealed the Public Parks Act 1884, which in turn had repealed the Public Parks Act 1854. Each of these repealing Acts contained savings provisions in respect of the repealed Acts and in particular providing for the continuance in office of existing trustees to similar effect as the savings provision contained in s 2 of the Public Parks Act 1912.

31. The reason for tracing the legislative antecedents back to the successive Public Parks Act is found in the provisions of the Black Wattle Bay Land Reclamation Amendment Act 1878 (41 Victoria No 20) which in s 1 repealed so much of s 1 of the Blackwattle Bay Land Reclamation Act 1873 (36 Victoria No 10) “as limits the area to be set apart and dedicated for the purposes of public recreation to one-fourth of the entire area reclaimed thereunder” and in particular s 2 which provided as follows.

The whole of the area reclaimed under the authority of the said Act shall be and the same is hereby declared to be set apart and dedicated in perpetuity as a park or place of public recreation and this enactment shall be construed to extend all other provisions (so far as can be applied) of the Public Parks Act of 1854 to the area so reclaimed.

32. Section 2 of the 1854 Act provided as follows:

If the Governor shall so think fit it shall be lawful for him to appoint Trustees of any lands in the Colony which have been already dedicated or may hereafter be dedicated by Proclamation to the purposes aforesaid or either of them without issuing any grants and such Trustees when so appointed as aforesaid and their successors to be appointed as herein mentioned shall be a body corporate and shall possess the same powers as the Trustees named in any deed of grant which may be issued as mentioned in the preceding section.

33. Section 5 of the 1854 Act provided as follows:

The Trustees appointed by virtue of this Act shall have the powers of absolute owners (except for the purposes of alienation) in respect of the land granted to or placed in trust under them and it shall be lawful for them to make such rules and regulations for the protection of the shrubs trees and herbage growing upon such lands and for regulating the use and enjoyment of such lands.

34. Upon the repeal of the 1854 Act by the Public Parks Act 1884, that latter Act empowered the Governor to appoint Trustees “of any lands which have been already or may hereafter be dedicated…for the purposes of public recreation and convenience, health or enjoyment….”

35. Section 6 of the 1884 Act provided as follows:

Trustees shall for all purposes of this Act and of any by-law thereunder be deemed to hold an estate in fee simple in the land for which they are appointed but shall not be capable of alienating, charging or in any way disposing of such land or any part thereof provided always….

36. By Proclamation dated 4 November 1885, the Governor in pursuance of the Public Parks Act 1884 declared the land described therein (being land “which has been set apart and dedicated in perpetuity as a park or place of public recreation”) to be subject to the provisions of the Public Parks Act 1884 and be known by the name “Wentworth Park”.

C. THE RELEVANT FACTS

37. The relevant facts which are not in dispute and which are chiefly contained in the Statement of Agreed Facts (Exhibit 1) can be summarised as follows:

1. The Applicant is a Reserve Trust established under s 92(1) of the Crown Lands Act 1989 in respect of the subject land.

2. The Applicant is shown in folio identifier 678/729635 as the registered proprietor of the subject land. The notifications recorded in the Second Schedule of the folio identifier evidence the facts that the land is “part of Wentworth Park proclaimed 10 November 1885” and that the land is “a reserve within the meaning of Part 5 of the Crown Lands Act 1989 and is subject to the provision of that Act in particular see restrictions on dealings under section 102”

3. The subject land forms part of the land reclaimed under the authority of the Blackwattle Bay Land Reclamation Act 1873 the whole of which reclaimed land was declared by the Blackwattle Bay Land Reclamation Amendment Act 1878 to be set aside and dedicated in perpetuity as a park or place of public recreation and the whole of which reclaimed land was by proclamation of the Governor published in the Government Gazette of 10 November 1885 declared to be the subject to the provisions of the Public Parks Act 1884 and to be known as Wentworth Park.

4. Since the 1885 proclamation was made the subject land (forming part of Wentworth Park) has been under the care control and management of statutory trustees successively appointed (or deemed to be appointed) pursuant to the Public Parks Act 1854, 1884, 1902 and 1912 or the Crown Lands Consolidation Act 1913 or the Crown Lands Act 1989.

5. By notification pursuant to s 37Q of the Crown Lands Consolidation Act 1913 published in Government Gazette No 24 of 16 February 1990, the trustees of the subject land were appointed as a corporation with the name “ Wentworth Park Greyhound Racing Complex ”.

6. The present use and occupation of the subject land is as follows:

(a) NSW National Coursing Association Ltd (NCA) and NSW Greyhound Breeders, Owners and Trainers Association Ltd (GBOTA)

By Licence Deed dated 27 September, 1985 the Trust, with the consent of the relevant Minister as required by the C L Act, granted a 20 year licence with a 20 year option to both NCA and GBOTA.

Essentially, the Licence Deed gives NCA and GBOTA the right to do specified things to enable each to conduct greyhound race meetings, qualifying heats and trials and other approved events. The licence is only able to be exercised between certain hours on specified days. Each year a total 104 greyhound race meetings are conducted by NCA and GBOTA each Saturday and Monday. As well, trials are held by NCA and GBOTA twice weekly, and qualifying heats on a regular basis. NCA and GBOTA each have the right to conduct an additional 10 special events each year on part of the land.

Department of Sport, Recreation and Racing

Erected on the land is a substantial grandstand only part of which is included in the area licensed to NCA and GBOTA. Levels 2 and 3 of the grandstand (with certain minor exceptions) are leased by the Trust to the State Government and are occupied by the Department of Sport, Recreation and Racing under a 10 year lease, being registered No. 116432, which expires on 4 September, 2001. That lease is in the process of being varied to extend the term by 12 months to 4 September, 2002. In addition to the Department occupying part of Levels 2 and 3, a large number of sporting associates are accommodated essentially as sub-occupants of the Department. The Level 2 and 3 areas are collectively referred to as Sports House.

Sydney All Sports Pty Ltd

Also erected on the land is a free standing building known as the Broadcaster’s Box. By Licence Deed dated 31 January, 2000, the Trust, with the Minister’s consent, has granted a two (2) year licence with a three year option, to Sydney All Sports Pty Ltd, to conduct sports betting pursuant to a sports betting authority.

Energy Australia

There is a registered lease, being registered No. 6775436, for an electricity substation which is located on part of the land.

Temporary Licences

Under the C L Act, the Trust is empowered to grant temporary licences for prescribed purposes [Section 108(1) of the C L Act]. A temporary licence is defined in the Crown Lands Regulation 2000 as a licence for (in effect) a period not exceeding twelve (12) months [Regulation 32(c)]. The prescribed purposes are set out in Regulation 32(a).

The Trust regularly grants temporary licences for use of various parts of the land and improvements. For example:

(i) There is currently a licence to Sydney Olympic, a National Soccer League Club, to use the Oval area, and certain change rooms, for training and for that Club’s junior team to play soccer matches.

(ii) Numerous functions and events are conducted each year utilising function facilities within the Grandstand catering for up to 1,000 dinner guests. The dining space is supplemented by seven (7) bars and two (2) large areas for exhibitions and functions. The two (2) spaces give a combined total area of 4,000 square metres.

The Trust makes available facilities, often free of charge, for a range of community groups and bodies within the Glebe and Ultimo areas for various functions including those for pensioners and underprivileged citizens, school children’s annual sports carnivals, coaching clinics, etc.

D. ADJUDICATON OF THE DISPUTE ISSUES

38. I first shall consider the question whether the subject land is relevantly owned by the Crown. If this question is answered affirmatively, it will be necessary to consider the second question, whether the land is “not held under a lease for private purposes”.

39. If the first question is answered in the negative, the second question does not arise. Nonetheless, and for completeness, I shall still determine the second question.

Question (1): Is the subject land owned by the Crown?

40. Although the competing arguments have principally addressed this question by considering whether the subject land is relevantly owned by the Crown or by the Applicant, I think that the true owner is to be found elsewhere, namely that neither the Crown nor the Applicant owns the land beneficially because the subject land (as part of Wentworth Park) was dedicated in perpetuity as a park or place of public recreation by virtue of the operation of s 2 of the Blackwattle Bay Land Reclamation Amendment Act 1878.

41. In the celebrated judgment of Windeyer J in Randwick Council v Rutledge there is an illuminating discussion at 73 to 79 of the meaning of “dedication” in the case of a public reserve.

42. At p 74, Windeyer J said:

It (dedication) seems to have been thought to indicate something binding the Crown and creating some rights in members of the public or a section of the public. Land reserved from sale did not pass from the control of the Crown. But lands granted for public charitable purposes were removed from the control of the Crown and were properly described as dedicated; and so also were lands granted as commons.

43. At p 75/76 Windeyer J said:

Attorney-General v Eagar (1864) 3 S.C.R. (N.S.W.) 234 established that lands impressed with a trust could not be diverted by the Crown to purposes alien to the trust. Its authority that such lands were dedicated is undiminished. And in connection with the very lands there in question, the legislature later adopted the words dedicated in the Church and School Lands Dedication Act, 1880. But, in so far as the decision in Attorney-General v. Eagar appeared to place dedicated lands outside the authority of the legislature, it was mistaken. It was a later and even greater mistake to think that lands appropriated and taken into use by the Crown for a particular purpose (without the creation of any trust) became dedicated to that purpose and could not thereafter be used by the Crown for another purpose. All this was fully considered in Williams v. Attorney-General for New South Wales (the Government House Case (1913) 16 C.L.R. 404; (1915) A.C. 573; (1915) 19 C.L.R. 343). It suffices to say here that there can be no dedication in any strict sense unless a public trust be created. In the case of land vested in trustees as a public reserve in the form of a park or open space, to be maintained for the recreation of the public generally and not for the profit of any individuals, no difficulty arises; for the devotion of land to such a purpose is clearly charitable.

44. In my judgment, this passage aptly describes the status (original and continuing) as a park or place of public recreation dedicated in perpetuity of the subject land (forming part of Wentworth Park) with the ultimate legal consequence that the beneficial ownership of the land has passed out of the control of the Crown.

45. There is no evidence that the legislature has ever taken action to terminate that dedicated status of the subject land. The Crown Lands Act 1989 and its legislative antecedents did not affect this status—all that they have done is to provide for successive appointments of statutory trustees to control and manage the subject land for its dedicated purpose.

46. I say this, notwithstanding the fact that the 1873 and 1878 Acts dealing with the Blackwattle Bay Land Reclamations were repealed by the Statute Law Revision Act 1898 because as s 1 of that Act provides:

This Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered—or any existing status or capacity—or any right, title obligation or liability already acquired, owned or incurred…..

47. In the certificate of the Commissioner for the Consolidation and Revision of the Statute Law appended in that Act, it is stated, inter alia, in relation to the savings clause included in the Act

Its effect is to preserve untouched all the past operation of the Acts repealed, even where that past operation is of a permanent and continuing character.

48. In my judgment, the dedication in perpetuity as a park or place of public recreation of the land comprising Wentworth Park (including the subject land) created by the 1878 Blackwattle Bay Land Reclamation Amendment Act continued after the repeal of that Act by the Statute Law Revision Act 1898 and so continues to the present time because no relevant legislation has been passed having the effect of dissolving or discharging that dedication in perpetuity.

49. It follows for the reasons I have given that the subject land has not been shown to be owned by the Crown, because its beneficial use and enjoyment was, and remains, vested in the public by virtue of the 1878 Act. Apart from that beneficial interest, the only other interest is that of the statutory trustees appointed to control and manage the subject land under the successive Public Parks Acts, the Crown Lands Consolidation Act and (currently) the Crown Lands Act 1989.

50. This conclusion is sufficient in itself to dispose of the entire proceedings because the exemption from rates claimed by the Applicant is predicated, in part, upon the land being owned by the Crown.

51. But does this conclusion create any doubt as to the Applicant’s liability to the rate assessments, the subject of the present proceedings since liability, in the case of land not owned by the Crown, is fixed by s 560 upon the “owner” of the land on which the rate is levied?

52. My conclusion (and the reasons for it) that the subject land is not owned by the Crown, is premised upon the common law and equitable concepts of ownership of land. However, the liability of an owner of land imposed by the Local Government Act 1993, s 560 is to be understood in the light of the definition of “owner” contained in the dictionary to the Act. In particular, the provisions of par (b) are relevant because the subject land is not “Crown land” as that term is defined (ie it does not include “land dedicated for a public purpose”).

53. There are two bases upon which it may be held that the Applicant falls within limb (b) of the statutory definition—

(i) it is entitled to the land for an estate of freehold in possession by virtue of the estate vested in it by s 100 of the Crown Lands Act 1989 ; and hence falls within subpar (i) of par (b) ; or

(ii) it is entitled to receive, or is in receipt of, the rents and profits of the land “whether as beneficial owner, trustee…or otherwise” and hence falls within subpara (ii) of par (b).

54. Of the two bases, the second-mentioned is, in my opinion, more clearly established.

55. The Applicant receives considerable annual sums for rent and for licence fees payable by various lessees and the licencee of the subject land: see Gladstone Town Council v Gladstone Harbour Board (1964) 11 LGRA 231.

56. The present case is a far stronger case than that case where it was held that the trustees appointed under the Queensland Land Acts 1910 to 1960 were not in receipt of any interest in the land, which remained Crown land, but were nevertheless “owner” of the land for the purposes of the Queensland Local Government Acts even though the statutory definition of “owner” did not include within the expression “person entitled to receive rents etc a person so entitled as a “trustee” and receiving them as “trustee”.

57. The definition of “owner” in the Local Government Act 1993 includes in limb (b)(ii) a person in receipt of rents and profits “whether as beneficial owner or trustee”. Without having to decide whether the Applicant is in receipt of the rents derived from leases and licences of the subject land “beneficially” it is clear that if they are not receiving the rents beneficially, they are receiving them as "trustee”.

58. Accordingly, for the foregoing reasons, I would hold that the Applicant is relevantly the “owner” of the subject land within the meaning of subpar (ii) of par (b) of the definition of “owner”.

59. This means that it is not necessary to consider whether the Applicant falls within the other relevant limb of the definition ie subpar (i) of par (b). However, for completeness, I would hold that the Applicant does also come within this provision of the definition upon the basis of the estate vested in it by s 100 of the Crown Lands Act 1989, understood in the light of the fact that the beneficial ownership is vested in the public (Rutledge)..

60. In so concluding, I would not, with great respect, describe that estate as merely a “statutory fiction” as did Barrett J in a different context in Townsend v Waverley Council (2001) NSWSC 384.

61. Nor with great respect would I regard s 100 as merely reinforcing the powers of management of the reserve conferred upon the trustees, as did Waddell J in Forster Homes For the Aged Trust v Great Lakes Shire Council (1976) 1 NSWLR 577 at 580. That case is distinguishable from the present case inasmuch as it involved a situation where the land remained “Crown land” within the meaning of the Crown Lands Consolidation Act 1913, whereas the subject land clearly is not Crown land (and has not been so since the 1878 Act).

62. Moreover, Waddell J recognised at 580 that it might fairly be said that while the land was being devoted to the reserved public purpose that it should be regarded, in that context, as being owned by the trustees. However, such a conclusion was foreclosed, in his Honour’s view, by the application of the definition of “owner” contained in s 4 of the Local Government Act 1919 which included the following proviso:

The Crown shall be deemed to be the owner of all lands of the Crown

63. Significantly, this proviso was not included in the definition of “owner” contained in the 1993 Local Government Act. Its absence here provides a further reason for distinguishing the Forster Homes case.

64. Accordingly, for all of the foregoing reasons, I would hold that the Applicant is relevantly the owner of the subject land within the meaning of subpars (i) and (ii) of par (b) of the statutory definition.

65. In so concluding, I would also hold that the Applicant is not a statutory body representing the Crown. It is not declared to be a statutory body representing the Crown by any relevant legislation and my consideration of the provisions of Part 5 of the Crown Lands Act that I have earlier reached leads me to conclude that it should not be so held. Those provisions indicate an independent role of a reserve trust, albeit subject to Ministerial control in respect of the exercising of certain powers, cf Townville Hospital Board v Townsville City Council (1982) 149 CLR 282. This conclusion is supported by my review of the legislative antecedents to the Crown Lands Act. It is also supported by the terms of the rate exemption provided in s 556(1)(b) recognising that land used as a “public reserve” may be vested in “the Crown, a public body or trustee”.

66. For all the foregoing reasons, I conclude that the subject land is not owned by the Crown. This conclusion means that the Applicant’s claim to exemption from rates based upon s 555(1)(a) must fail.

67. For completeness, I shall consider the second question, but briefly, upon the necessary assumption that the land is relevantly owned by the Crown.

Question 2: Is the land not held under the lease for private purposes?

68. The true nature and scope of this aspect of the exemption from rates conferred by s 555(1)(a) has been extensively expounded by recent decisions of the Court of Appeal. They are collected and discussed and applied in my recent decision in Quality Parks Pty Ltd v Maclean Shire Council (2002) NSWLEC 77 , I do not here repeat what I there said but simply refer to it.

69. In my judgment, the uses to which the subject land is put pursuant to the licences to the NSW National Coursing Association Limited and The NSW Greyhound Breeders Owners and Trainers Association Limited means that is is clearly held thereunder for private purposes.

70. The licence is relevantly a “lease” (as defined by the Local Government Act).

71. The use of the subject land made by the licensees is clearly the dominant use made of the subject land, just as it was held to be in the earlier Land and Valuation Court decisions concerning the subject land that I have earlier referred to.

72. Because of the existence of that dominant use, the Applicant has not even attempted to establish that the land is not held under lease for private purposes.

73. Instead, it seeks to rely upon the existence of the other forms of leases and licences as justifying a finding that part (s) of the subject land is relevantly ‘not held under lease for private purposes”.

74. I am unable to accept this submission. The dominant characteristic of the several uses made of the subject land is the existence and use of the Greyhound racing track and the related facilities by the two licensees that I have earlier mentioned. This dominance eclipses the other uses made of the subject land and leads me to conclude that the subject land, as an un-subdivided unit, is relevantly held under lease for private purposes. Accordingly, the Applicant has not established that the land (assuming that it is relevantly owned by the Crown) is not held under lease for private purposes.
E. CONCLUSIONS

75. For all of the foregoing reasons I hold that the subject land is not exempt from rates under s 555(1)(a) of the Local Government Act as claimed by the Applicant.

76. Accordingly, I make the following orders

1. The appeal be dismissed.

2. Exhibits be returned

3. Question of costs be reserved.